Military justice on trial: Military courts have room for improvement

The cities of Haditha, Hamdania and Mahmoudiya in Iraq have
lately become household names in the United States that are
synonymous with courts-martial of our personnel for alleged crimes
against Iraqi civilians arising from the war. These crimes include
the very serious offenses of kidnapping, murder and rape.

These events have generated great public interest in military
justice not seen since the Vietnam War and the court-martial of
Lieutenant Calley for the unlawful killing of civilians at My Lai.
This is the first time in many years that the military's system of
criminal justice has raised any public interest or faced such
potential public scrutiny.

Several bloggers, commentators and veterans groups have recently
raised questions about whether the system is fairly treating the
soldiers and Marines facing court-martial as a result of these
reported events. Many have questioned whether those accused are
being judged prematurely or unfairly.

Without addressing any of the alleged facts in these cases, it
would be remiss not to look at the larger picture. Renewed public
interest in the system provides a valuable opportunity to raise
aspects of the military justice system that could benefit from
further scrutiny or reform.

On the whole, those already familiar with the system ññ mostly
those who have served or are currently serving in the military ññ
believe the overall system to be a fair one. Some of the aspects of
the military system that earn deserved praise include greater
rights to remain silent, rights to free counsel and comprehensive
pretrial discovery.

For instance, defense counsel and their clients have the right
to attend the pretrial investigative proceedings known as Article
32 investigations. These investigations are the military equivalent
of grand jury proceedings. Unlike civilian defendants, military
counsel and the accused can attend these proceedings, cross-examine
witnesses and present evidence to rebut the proposed charges. This
is far different from the secretive civilian grand jury system,
where only the prosecutor is permitted to attend and the testimony
presented is sealed. Additionally, military accuseds of all ranks
and salaries are assigned a free defense counsel. Only the indigent
in the civilian system are accorded such a right.

Although these are notable benefits, there are those differences
between the military and civilian systems worthy of discussion.
First, contrary to many of our allies such as Canada and the United
Kingdom, the United States system has a military judiciary that is
not entirely independent. This is not to say that individual
military judges are partial or biased. But, the system itself of
appointment and promotion is not one that inspires confidence.

Becoming a member of the military judiciary is frequently not
career-enhancing and it is well known that choosing to become a
full-time military judge often results in "being passed over" ññ
the military's equivalent of imposing a glass ceiling on promotion
potential and eventually forced retirement. This situation forces
those who aspire to the bench to make a difficult decision whether
to accept a position that provides great professional satisfaction
at potential personal cost, or to forfeit these opportunities in
lieu of a different assignment that provides more promotion
opportunity.

This issue, however, could be remedied in several proposed ways.
Military judges could be provided fixed terms of office, like many
of their civilian counterparts. This would at least guarantee that
judges are not removed immediately from office for unpopular
decisions. Another idea is to better solidify a military judge
career path by establishing a "purple" judiciary. Potential judges
from all of the military branches could be competitively screened
and serve without regard to "careerist" concerns. This would
eliminate service stovepipes, enhance judicial education and
opportunity and mitigate the effect of the current system, where
military judges compete for promotion against the very same lawyers
providing the government's advice.

Moreover, military justice could benefit considerably from
moving to a system where the members (or jury, in civilian terms)
are chosen at random, rather than being handpicked by the convening
authority. The convening authority is that official who is in
charge of the command and the one who determines whether to bring
charges in the first instance.

This is not to say that military members are predisposed toward
conviction. In fact, in my experience, military members are better
educated and more interested in serving than their civilian
counterparts. Their sense of duty generally makes them better
suited to firmly apply legal standards and hold the government
accountable to its burden of proof.

But it is noteworthy that appearances are equally as important
as results. The current rules that require the convening authority
to appoint members based upon detailed factors, such as "age,
education, training, experience and length of service," give the
appearance that the panel is beholden to the commander who selected
them for duty.

Finally, the military justice system could benefit from a
transparent docketing system that is accurate, current and easily
available to the public, just as the civilian courts provide. In
this Internet age where courts are increasingly posting their
scheduled cases online to provide public transparency and access,
there is no reason why courts-martial should not be equally as
open.

According to law, both Article 32 hearings and the
courts-martial themselves are required to be publicly open. They
are only supposed to be closed under very particular circumstances,
such as presentation of classified evidence. And in these limited
instances, it is only these portions of the trial that are closed.
Therefore, posting the location, dates and times of pending
courts-martial would allow local citizenry to attend courts-martial
in their areas and permit the press to accurately and adequately
cover military trials of interest. Because the military justice
system is heavily decentralized, the government has resisted
initiating the implementation of such a service. However, the
administration of justice would benefit greatly from this
effort.

In the absence of any government action, the National Institute
of Military Justice has recently undertaken a new project to create
an online reporting system that will track all courts-martial
convened around the world. While this is not a small effort by any
measure, it is a project that is long overdue. Removing perceived
secrecy from the system is a solid step toward ensuring public
confidence that justice is being done.

Recent events have highlighted the need to increase civilian
education and access to the courts-martial process. If our
personnel are increasingly being asked to defend democracy abroad,
it is only right that our public believe they are receiving the
same considerations at home.

- Kathleen A. Duignan is executive director of the National
Institute of Military Justice, a nonprofit dedicated to advancing
the fair administration of military justice and fostering improved
public understanding of the military justice system.